Warner Bros. Has To Reveal The Process By Which It Sends Automated DMCA Takedowns

from the good-to-see dept

Mon, Sep 29th 2014 12:30pm — Mike Masnick

We covered the movie studio's lawsuit against cyberlocker Hotfile, which ended in a settlement, but there was an interesting side story involving a countersuit against Warner Bros. for abusing the copyright takedown process. From Hotfile's filing at the time:

Warner has acted unscrupulously and dishonestly. Not only has Warner (along with four other major motion picture studios) filed this unfounded and contrived litigation against Hotfile employing overly aggressive tactics, Warner has made repeated, reckless and irresponsible misrepresentations to Hotfile falsely claiming to own copyrights in (or to have the owners' authorization to delete) material from Hotfile.com. Worse, Warner continued to make these misrepresentations even after Hotfile explicitly brought this rampant abuse to Warner's attention, ruling out any possibility that its wrongful actions were accidental or unknowing. Thus, Warner has knowingly made misrepresentations and it has engaged in DMCA abuse on an unprecedented scale by grossly misusing the powerful anti-piracy software tool that Hotfile specially created at Warner's request.

Among the works taken down by WB's bogus requests were open source software. WB admitted to sending bogus takedowns, but basically said there's nothing illegal about that and there's nothing anyone can do about it. Basically, WB says that you can take down the wrong files all day long and that's fine. The only thing you're not allowed to do in a DMCA notice is misrepresent that you're authorized by the copyright holder to file a takedown (even if the takedown is bogus).

In settling, it seemed as though the issue of WB's abuse of the takedown process might fade away, but the EFF picked up that ball and ran with it, and now the court has ruled that Warner Bros. has to reveal the details of its automated takedown system to see if it's in violation of the DMCA's 512(f) clause regarding "misrepresentations" under the law. As we've described for years, 512(f) has basically been shown to be almost entirely toothless. However, there have been a number of attempts to change that. Here's EFF's summary of the judge's ruling here:

A judge found that Warner might be liable under Section 512(f) of the DMCA, which prohibits sending takedowns without having a basis for believing the content is actually infringing a copyright owned by the person initiating the takedown. The judge ruled that Hotfile had presented enough evidence of abuse that a jury could decide the issue. But before the case could be heard by a jury, the parties settled, and Hotfile shut down. So there was evidence that Warner may have crossed the line, but the details have been held under seal, inaccessible to the public. In February, EFF asked the court to release the sealed records that explain the court’s decision, including aspects of Warner’s robo-takedown system that Hotfile had challenged.

At an oral hearing in the Miami federal courthouse on Thursday, attorney Dineen Pashoukos Wasylik argued for EFF. Noting that court records are normally supposed to be open to the public, Judge Kathleen Williams ordered Warner to release certain information within ten days of Thursday’s ruling, and to propose a schedule for releasing the rest.

While it's unlikely that anything will happen directly here, at the very least, the details here could be useful given that copyright law is up for reform, and that could (finally) include putting some teeth into punishments for abusing the DMCA takedown process to take down perfectly legitimate content.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: automated takedowns, dmca, takedowns
Companies: eff, hotfile, warner bros.

25 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 29 Sep 2014 @ 12:38pm

I wouldn't be at all surprised whatever documents hands over will be heavily redacted to hide the actual process of how this operates unless of course they can get out of having to reveal this by appealing the ruling.
[ link to this | view in thread ]
ACasey (profile), 29 Sep 2014 @ 12:45pm

Would be much nicer if the court forced them to pay a fine for every false takedown...
[ link to this | view in thread ]
Anonymous Coward, 29 Sep 2014 @ 12:48pm

The only thing you're not allowed to do in a DMCA notice is misrepresent that you're authorized by the copyright holder to file a takedown (even if the takedown is bogus).

I can see some groups on the Internet having great fun with that, and if it is accepted by a court, nuclear war will be declared on the Internet.
[ link to this | view in thread ]
Baron von Robber, 29 Sep 2014 @ 1:04pm

I think a false takedown should use the following formula. Take note: It's still cheaper than copyright's infringement fine of $150,000 per infringement.....to a point.

10*(100*(per incident)^2)) in dollars within a year's timeframe.

so...

1 time = $1,000
5 times = $25,000
15 times = $225,000
25 times = $625,000

With the money going to those who had their sites taken down falsely.

Those who abuse it like Warner's will see their profits take a plunge till they learn not to do it.
[ link to this | view in thread ]
DannyB (profile), 29 Sep 2014 @ 1:09pm

Warner's proposed schedule
Judge Kathleen Williams ordered Warner to release certain information within ten days of Thursday’s ruling, and to propose a schedule for releasing the rest.

Within ten days Warner will propose a schedule something like:

Warner is diligently working to release its proprietary process* for sending bogus DMCA takedowns. Warner anticipates that it will be able to produce one step of the process each one quarter of a galactic turn.

Warner respectfully asks the court to keep the process under seal so that others cannot use it against us. It would be very disruptive of our business if others could send Warner bogus DMCA takedowns that had the force of law.

* Warner's proprietary process for sending bogus DMCA takedowns has been licensed to four other major studios, and the license agreement requires non-disclosure of the process used.
[ link to this | view in thread ]
DannyB (profile), 29 Sep 2014 @ 1:14pm

Re:
I think something like $150,000 as a statutory fine for a bogus takedown is completely reasonable. Based on the same argument for the ridiculous statutory copyright penalty.

One single instance of {piracy | bogus takedown} can do huge economic damage and result in the loss of large numbers of sales.
[ link to this | view in thread ]
Anonymous Coward, 29 Sep 2014 @ 1:23pm

this is about time! hopefully it will reveal just how the entertainment industries have been 'performing' in this show and bring the curtain down on their shady practices!

the industries have been and are extremely quick to use the DMCA against others, even when they have no legitimate right to and have fleeced thousands from other companies and people. hopefully what they have been doing will encourage a change in the law so that false take downs carry as big fines as genuine ones. now that is gonna be interesting!!
[ link to this | view in thread ]
Anonymous Coward, 29 Sep 2014 @ 1:34pm

Re: Re:
I think something like $150,000 as a statutory fine for a bogus takedown is completely reasonable.

Heck, I've always thought it should simply be thought of as infringement.

The copyright owner is supposed to have the exclusive right to distribute their work. When someone sends a false DMCA, the owner is prevented from distributing their material in the way they see fit. Which is worse: people pirating your material, or having your material actively taken down from where you put it?

So, yeah. I'm totally in favor of $150,000 for willfully sending a false DMCA. I'd also support an injunction prohibiting them from sending any further DMCA notices for a period of, say, 10 years. If you can't play nicely with your toys, we're going to take them away.
[ link to this | view in thread ]
ACasey (profile), 29 Sep 2014 @ 1:42pm

Re: Re: Re:
It's interesting how the copywrong folks hate infringement until they could possibly be seen doing it, then they think it's a-OK.
[ link to this | view in thread ]
Anonymous Coward, 29 Sep 2014 @ 1:52pm

Re: Re: Re: Re:
Well, that's to be expected. They don't actually care about copyright for copyright's sake. They care about their own profits, and use copyright as a means to that end.
[ link to this | view in thread ]
DannyB (profile), 29 Sep 2014 @ 2:02pm

Re: Re: Re: Re: Re:
I agree with you. But I think $150,000 per bogus takedown would be a good start.

Furthermore, they don't just use copyright as a means to profit, they use it:
* as an anti-competitive weapon against anyone who might create anything interesting
* as a means to keep artists enslaved
* as a means to control artists (if you don't do what I say, pretty thing, you won't be cutting any new records)
[ link to this | view in thread ]
Anonymous Coward, 29 Sep 2014 @ 2:50pm

It would seem like these automated takedowns would simply be based on key words in the title of the content being protected. But looking at Google's transparency report, many of the hired-gun enforcers are using long lists of key words (often pornography-related) that have nothing to do with the title of the copyrighted media. This might be a result of a bug in the program, or maybe these companies are being paid by the number of takedowns filed, and therefore are intentionally padding their invoices by using a very "loose" algorithm. One thing for sure, the hired contractors have for the last couple of years been pumping out a higher percentage of obviously-bogus takedowns than the in-house copyright enforcers.

It's a shame that so many file-hosting sites like Hotfile have closed down without ever publishing any "transparency reports" like Google does. Considering the huge number of obviously-bogus takedowns sent to Google, it would be interesting to see if the same thing (or perhaps worse) has been happening to file-hosting sites.
[ link to this | view in thread ]
Monarch818, 29 Sep 2014 @ 2:52pm

EFF Wins Release of Warner Bros. Documents On Robo-Takedown System
Updating with the Link for EFF Wins Release of Warner Bros. Documents On Robo-Takedown System

https://www.eff.org/deeplinks/2014/09/eff-wins-release-warner-bros-documents
[ link to this | view in thread ]
Anonymous Coward, 29 Sep 2014 @ 3:01pm

Re:
It's a shame that so many file-hosting sites like Hotfile have closed down without ever publishing any "transparency reports" like Google does.

That is probably because they cannot afford to hire enough people to look at DMCA requests, and have to automate their processing of them.
I suspect that the MPAA/RIAA re trying to swamp Google with requests, so that they end up automating the handling, without looking at them. Such swamping also make it almost impossible for companies to deal with any challenges in a a reasonable fashion.
[ link to this | view in thread ]
Mike Masnick (profile), 29 Sep 2014 @ 4:01pm

Re: EFF Wins Release of Warner Bros. Documents On Robo-Takedown System
That link is already in the story...
[ link to this | view in thread ]
Rekrul, 29 Sep 2014 @ 6:53pm

While it's unlikely that anything will happen directly here, at the very least, the details here could be useful given that copyright law is up for reform, and that could (finally) include putting some teeth into punishments for abusing the DMCA takedown process to take down perfectly legitimate content.

Yeah, that will happen right after congress gets through regulating flying cars...
[ link to this | view in thread ]
vgiannell5 (profile), 29 Sep 2014 @ 7:54pm

Re:
I'm afraid that's exactly what they'll do.
[ link to this | view in thread ]
Anonymous Coward, 30 Sep 2014 @ 1:11am

Re: Re:
"I think something like $150,000 as a statutory fine for a bogus takedown is completely reasonable. Based on the same argument for the ridiculous statutory copyright penalty."

That's true, but you see that would be *fair*. As any of the copyright apologists here will admit, they don't want things to be fair, they want it biased in their favour so they can bilk as many people as possible.
[ link to this | view in thread ]
Quiet Lurcker, 30 Sep 2014 @ 5:15am

Re:
Considering it's businesses who are abusing the processes, I'd tack about three zeroes onto those numbers.

In cases where the DMCA is used to force removal of open-source software and similarly situated materials, I'd be more than happy seeing the maximum allowed fines and/or imprisonment for perjury, to boot.
[ link to this | view in thread ]
Anonymous Howard (profile), 30 Sep 2014 @ 6:40am

Re:
Take this idea to certain shady parts of the interwe/b/s, and a lot of script kiddies could redeem themselves by disappearing much of hollywood's content from the internet
[ link to this | view in thread ]
Anonymous Coward, 30 Sep 2014 @ 9:50am

While it's unlikely that anything will happen directly here, at the very least, the details here could be useful given that copyright law is up for reform

Is Mickey Mouse's copyright expiring again?
[ link to this | view in thread ]
Anonymous Coward, 30 Sep 2014 @ 5:37pm

Re:
Within the next century. Too close for comfort!
[ link to this | view in thread ]
GEMont (profile), 30 Sep 2014 @ 5:45pm

let me guess.....
Uh, we're sorry Yer Onner sir, but, um, the hard drive where we kept all them documents you wanted, fell off the table into a bucket of hot sauce and was completely wiped clean of all incriminating evidence. Err.. sorry bout that.
[ link to this | view in thread ]
That One Guy (profile), 30 Sep 2014 @ 6:23pm

Re: let me guess.....
They probably wouldn't be quite that blatant, but something along the lines of 'We're terribly sorry your honor, but once the case was settled, we no longer felt that we needed to maintain those particular documents, and deleted them to save space.' wouldn't surprise me in the least.

Whatever happens though, you can bet they will fight tooth and nail to keep any document handed over from being available to the public, and thus open to challenge.
[ link to this | view in thread ]
GEMont (profile), 1 Oct 2014 @ 4:14pm

Re: Re: let me guess.....
I was simply offering the "street" version of the most popular official method for not getting caught.

You're absolutely right of course, that it will be stated in the best of legaleeze wording, because it will be stated by the most expensive experts in the art of legaleeze wording.

My "street version" was offered in the hopes of expressing just how juvenile the excuse is, as it is only slightly removed from the "Dog ate my homework." level.

It gets really depressing when day after day, the authorities one depends on to NOT start World War Three, act like spoiled infants of 8-9 years of age. It is even more frustrating when every other institutional "authority" mimics this behavior and the courts accept it at face value over and over again.

---
[ link to this | view in thread ]